South Derbyshire District Council (202012512)

REPORT

COMPLAINT 202012512

South Derbyshire District Council

21 October 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) by a neighbour.
2. The landlord’s decision to issue the resident with a tenancy warning.

Background and summary of events

Background

The landlord’s ASB Policy states that:
1. We will use a range of early informal interventions, including warning letters, acceptable behaviour contracts and mediation.
2. We have a tenancy agreement which prohibits ASB.
The landlord’s website states:
1. Your Housing Officer will visit your neighbour to discuss the complaint but will not say who made the complaint unless you agree we can. We do this to give them the chance to change their behaviour. If incidents continue we will ask you to fill in diary sheets and arrange to meet you to review these and tell you what we will do next.
The landlord’s tenancy agreement in section 5 states:
1. You must act reasonably and have consideration for your neighbours
2. As a tenant you will be held responsible for any form of unacceptable behaviour carried out by you…
3. You must make sure that you, … do not:
  1. Cause, or behave in such a way as is likely to cause harassment, alarm, distress, a nuisance, annoyance or disturbance to anyone in South Derbyshire.
The landlord has a two stage complaints procedure.

Summary of Events

The resident is a tenant of the landlord. His property is a first-floor flat with its own front door.
On 1 October 2020 the resident filmed his neighbour and her dog, which at the time was a puppy, outside his front door on a path / grassed area.
On 2 October 2020 the resident phoned the landlord stating that his neighbour’s doghad chased his cat. The police served her with a Community Protection Warning (CPW) on the same day requiring her to keep the dog on a lead in a public place including communal grounds of the block.On 5 October 2020, the landlord also spoke to the neighbour about the incident and the police action.
On 15 October 2020, the neighbour reported that the resident brought his cat close to her dog to provoke a situation, and also followed her and filmed her even when she left the boundary of her part of a grassed area. On the same day, the resident reported that the neighbour’s dog had chased his cat into his flat.
On 15 October 2020 the landlord served a warning letter to the resident. It noted that it had received a report that he approached his neighbour with his cat with the intention of inciting a reaction, and that after the cat was removed, he followed the neighbour and her puppy around the property and exiting the building curtilage continually filming her. The landlord stated that the puppy/dog was under control on a lead as per the CPW and asked the resident not to film and approach the neighbour as this behaviour was intimidating and a form of harassment.
The landlord reminded the resident that reports of this nature were a breach of sections 5 of the tenancy agreement. However, if the resident thought that the complaint was not justified or if he thought that someone else was causing the problem, he could contact it to discuss further.
On 18 October 2020 the landlord referred the parties to mediation.
On 20 October 2020 the landlord visited the neighbour about the resident’s reports.
On 21 October 2020 the resident wrote a letter to the landlord asking for a visit because the allegations against him were “lies” and he did not think that it had acted impartially. On 27 October 2020, the landlord exchanged emails and phoned him. The resident stated that the neighbour would bring the dog close to his cat at his from door to taunt him. He advised that he had a video clip of a confrontation showing “bad words”, “wild unleashed barking and the neighbour refusing to leave. The landlord noted it had visited the neighbour and witnessed that the dog was well managed on a lead. It suggested that the puppy was being inquisitive and playful when approaching the cat. It offered mediation, which had been agreed by the neighbour, with independent mediators, and subsequently made a referral on 29 October 2020.
On 30 October 2020, the resident asked the landlord to withdraw the “notice” of 15 October 2020 which he understood was “the first stage of warning of eviction”. In response the landlord advised that it was a standard warning and there would be no further action if there was no evidence to substantiate the ASB claim against him. It also advised it could not discuss CPW as this was issued by the police.
On 1 December 2020 the mediation service advised that the resident had responded to one phone call only and “not really engaged”, therefore it would make one further attempt to contact him before closing the case.
On 3 December 2020 the resident complained to the landlord that he had received “an eviction notice” which he wanted to be withdrawn. He advised that the notice was based on “lies” and that he was not able to “present the truth” prior to the notice.
On 17 December 2022 the landlord responded to the complaint. In the response:
1. It clarified that it had not served an eviction warning notice but a Tenancy Management first warning letter. It noted that the letter set out the reasons he had been issued with a warning, explained how the behaviour broke to tenancy agreement and advised of the possible consequences if the behaviour continued.
2. It considered that the first warning letter was proportionate to the complaint made about him. The police had also warned him about his behaviour. Therefore, it would not withdraw the warning letter.
3. Its mediation service had not been successful in contacting the resident aside from the initial contact, therefore the service was looking to close the case.
On 9 December 2020 the resident sent the landlord two video files.
The resident escalated his complaint, sending a USB stick with attachments received by the landlord on 4 January 2021.
On 18 January 2021 the landlord sent the Stage 2 response. It stated:
1. Its response of 17 December 2021 had explained that the letter of 15 October 2021 was not an eviction notice and it had explained what a first warning letter meant and why it was sent.
2. Exchanges of correspondence with the resident contained his version of events and the landlord’s acknowledgements and responses.
3. It described four video clips the resident had sent (three filmed on 1 October 2020 and one on 15 October 2022) noting that he had filmed his neighbour despite the neighbour asking him to stop filming her. It explained that the neighbour had found the resident’s behaviour intimidating and harassing which is why the first warning letter was sent and would not be withdrawn.
4. It apologised for an error in the response of 17 December 2021 which stated he had been warned by the police.

Assessment and findings

The landlord’s handling of the resident’s reports of antisocial behaviour by a neighbour

The resident has sent video evidence to this Service which has been viewed. It is acknowledged that the resident wished to provide evidence of his neighbour’s behaviour. It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here of ether party constituted ASB, as that was a judgement which fell to the landlord to determine. The landlord, however, has responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example. Ordinarily, it is the responsibility of residents themselves to resolve these and/or to find a way to live together with minimal impact of any mutual dislike.
The landlord’s policy and procedure for addressing ASB was comprehensive and appropriately structured. It allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB. This Service notes where ASB is reported, two things are crucial; that the matter is addressed quickly to prevent it from escalating and that evidence is obtained. Evidence is not required for the first of these to happen.
The landlord spoke to the neighbour on 5 October 2020 after the resident’s initial report of 2 October 2020 in line with the guidance of its ASB Policy. After both parties made reports about the other party’s behaviour on 15 October 2020 the landlord again approached the neighbour. The underlying issue was that the resident reported that the neighbour’s dog upset the resident’s cat. The landlord has provided evidence to this Service that it has taken appropriate action, through its contact with the neighbour, to prevent the recurrence of incidents. This, in part, involves holding the resident to the CPW outlining that her dog should be on a lead in communal areas.
The landlord in response to the reports of ASB also offered mediation to both parties at an early stage to the parties, which was an option in line with its ASB Policy. Generally, mediation is an appropriate option in low-level disputes between neighbours. It allows neighbours to understand the point of view of the other party and reach an agreement, facilitated by a mediator, to live in an amicable way so as to prevent an escalation of the dispute.

The landlord’s decision to issue the resident with a tenancy warning.

In this case, the neighbour advised she was intimidated and harassed by the neighbour’s actions, in particular him filming her. The landlord in writing to the resident about the allegation received about him followed an option provided for by its ASB Policy. Over and above the policy, a landlord is entitled to approach the alleged perpetrator of ASB to put an allegation to them. This enables the alleged perpetrator to respond, providing their version events, and where appropriate, to take steps to change their behaviour and to put things right. In contacting an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant. As such it was in line with the policy and reasonable that the landlord wrote to the resident.
The resident wanted the letter removed as he disputes the neighbour’s version of events. The landlord has no obligation to remove documents from the tenancy file. Generally, as landlords are required to keep an audit trail of actions taken on a case, documents should only be removed from a file in exceptional circumstances, where there is good reason to do so. In any event, the landlord in the letter of 15 October 2020 explicitly invited him to contact it if he thought the report against him was not justified. In fact, he provided his version of events and supporting evidence. The landlord has therefore ensured that there are balanced accounts of incidents on his tenancy file.
The resident provided his recordings as supporting evidence to his request that the letter of 15 October 2020. In responding to the resident’s complaint, the landlord explained why it would not remove the letter, having watched the videos. In particular it noted that the resident’s filming was found to be intimidating and harassing.
The resident expressed concern about the outcome of the letter of 15 October 2020. The landlord took appropriate steps to explain why the letter was sent and resolve the resident’s concern about tenancy action being taken against him. In particular, it clarified that it was not following eviction proceedings and that no further action would be taken against him if there were no further reports.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its handling of his reports of antisocial behaviour by a neighbour
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the resident’s complaint about its decision to issue him with a tenancy warning.

Reasons

The landlord has provided evidence to this Service that it has taken appropriate action, through its contact with the neighbour, to prevent the recurrence of incidents. The landlord in response to the reports of ASB also offered mediation to both parties at an early stage to the parties, which was an option in line with its ASB Policy and appropriate given the circumstances of the case.
It was in line with the policy and reasonable that the landlord wrote to the resident on 15 October 2020 about the allegation received about him. Whilst the resident wanted the letter removed the landlord has no obligation to remove documents from the tenancy file. In any event, the resident has provided his version of events and supporting evidence, therefore there are balanced accounts of incidents on his tenancy file.
The landlord has explained why the videos provided by the resident did not affect its decision to keep the letter of 15 October 2020 on file. It also sought to resolve the resident’s concern about tenancy action being taken against him.